Of Counsel

Legal Notes on Georgia and The South

Court Update

Posted by Maggie on September 10, 2007

Convictions Affirmed: 7

Termination of Parental Rights Affirmed: 1

Francis v. State, A07A0861.  Have you ever had one of those cases where you lose a Motion to Suppress because your vehicle just happens to match a BOLO and it’s just too much of a coincidence?  I have.  And in this case, the defendant loses, but we finally see an example of where a BOLO just happens to match a car in the right place at the right time but it’s actually the wrong car.  Anyway, the factual circumstances here seem really strong, unfortunately the court doesn’t care because the defendant tried to get away from the cops.  Shouldn’t Fleeing/Attempting to Elude be like Obstruction?  It doesn’t count if they shouldn’t be stopping you anyway?

Lindsey v. State, A07A0895.  These could’ve been some great facts for a Motion to Suppress, except for the fact that the guy consented to the search.  Teach your clients to say no.

Pulliam v. State, A07A1558.  Another of these cases we’ve been getting so much lately about defendants trying to get rid of counsel.  This time it’s during voir dire.  Defendant claims lawyer didn’t tell him he was going to trial that day, and we never hear from counsel as to whether that’s true since the trial court dismisses the motion pretty quickly.

Hester v. State, A07A1012.  One issue addressed in this appeal is the entering into evidence of the Defendant’s notice of an alibi defense.  When the Defendant didn’t put on any alibi evidence, the prosecutor crossed him on it and entered the notice into evidence.  This seems like a pretty nasty tactic.  The Court says that the defendant could withdraw the motion at any time, but I can understand wanting to keep that door open in case you can find a witness.  But it all ends up being waived because counsel didn’t object so the court doesn’t ever make a decision.  So remember, object!  If you don’t, it’s not enough to get you out as ineffective.  Also of note is a Judge taking the prosecutor to task for improper argument.  Take a look after the jump…

STATE: “Let’s go back to the defendant’s numerous versions of the event and how close they come. Here’s that alibi notice. . . And you remember this letter that he wrote . . . where he says he’s willing to plead guilty to a theft charge . . . [In] the first statement he gave, . . . he only mentioned dropping Johnson off and not knowing what was going on. In the second statement that he gave he said, he knew about the armed robbery. But the one thing that stayed consistent at the beginning, before the defense lawyers got involved, before the law books started getting read –”

THE COURT: Wait a minute. Wait a minute. Now, before the defense lawyers got involved, you don’t need to argue that. Wait a minute.

STATE: Understood, Judge.

THE COURT: That’s beyond the pale. Don’t discuss what — this man’s an honorable lawyer. You’re suggesting that’s not a reasonable deduction from the evidence. That when the defense lawyer got involved, that the defendant began to mislead.

STATE: Well, —

THE COURT: That’s not a reasonable deduction.

STATE: I understand, Your Honor.

Another situation where counsel should have objected, but at least the Judge gave a good talking-to. Still, hard to unring that bell.

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